[Update – so I don’t forget – I just checked – this was our 50,000th published post at Legal Insurrection]
In late July, a district court judge in northern California issued an injunction against Joe Biden’s “Circumvention of Lawful Pathways” asylum rule. We covered the decision in Federal Judge Blocks Biden’s Asylum Rule Put in Place After Lifting Title 42.
The Ninth Circuit Court of Appeals just issued a Stay of the injunction pending an expedited appeal. Two Clinton appointees were in the majority for the 2-1 ruling:
The motion to stay the district court’s July 25, 2023, order and judgment (Docket Entry No. 8) is granted. See Nken v. Holder, 556 U.S. 418, 434 (2009) (defining standard for stay pending appeal).We sua sponte expedite the briefing and hearing of this appeal.The opening brief and excerpts of record are due August 24, 2023. The answering brief is due September 14, 2023. The optional reply brief is due within 7 days after service of the answering brief.The date for argument will be set by separate order.
The most interesting part of the Stay was the Dissent by Trump appointee Lawrence VanDyke, who lambasted his colleagues for allowing a Biden immigration rule to remain in place when they did the opposite for almost identical Trump immigration rules.
The dissent is a thing of beauty – here’s an excerpt:
My colleagues in today’s majority grant a stay pending appeal of a district judge’s order vacating a recently promulgated immigration rule. Only a few years ago, these same colleagues affirmed the same district judge enjoining the Trump administration’s rule restricting asylum eligibility for immigrants who entered the United States outside a designated port of entry (the Port of Entry Rule)…..Indeed, one or both of my colleagues in today’s majority were directly involved in eliminating at least four different Trump administration immigration rules….It’s not an exaggeration to say that, whenever the Trump administration sought to make any meaningful adjustment to our nation’s immigration rules, the Northern District of California—and ultimately our court—systematically killed each of those changes.The Biden administration’s “Pathways Rule” before us in this appeal is not meaningfully different from the prior administration’s rules that were backhanded by my two colleagues. This new rule looks like the Trump administration’s Port of Entry Rule and Transit Rule got together, had a baby, and then dolled it up in a stylish modern outfit, complete with a phone app. Relying on this court’s rationales in our prior decisions rejecting the Trump administration’s rules, Judge Tigar concluded that this new rule is indistinguishable from those rules in any way that matters. He’s right.For those who value the rule of law, following precedent, and predictability, one must conclude Judge Tigar had no choice but to vacate the current administration’s Pathways Rule for the reasons that he first provided and my colleagues then established as binding precedent during the Trump administration.I’d love to join my two colleagues in staying Judge Tigar’s ruling. I obviously agree with that result as a matter of first impression. See East Bay II, 993 F.3d at 696 (VanDyke, J., dissenting). But unlike my colleagues, I cannot so easily ignore our circuit’s binding precedent. And that is particularly true given the demanding standard the government faces in asking us for a stay. Among other hurdles the government must overcome, it must make a “strong showing” that, applying our court’s caselaw, it “is likely to succeed on the merits.” Id. at 702 (quoting Nken, 556 U.S. at 426 (emphasis added)). That simply is not possible under the sweeping rationales this court applied in our still-steaming cases terminating the Trump administration’s immigration rules.My colleagues, who made all that precedent, should not be able to now just elide it. It’s hard to shake the impression that something other than the law is at work here….I wish I could join the majority in granting a stay. It is the right result. But that result, right as it may be, isn’t permitted by the outcome-oriented mess we’ve made of our immigration precedent. Our own words should bind us with as much force as Odysseus’s ropes did. The rule now before the panel is not so meaningfully distinct from our past rules that it can navigate between the Scylla and Charybdis of our prior decisions striking down the Port of Entry Rule (East Bay II) and the Transit Rule (East Bay III). This latest rule is made up of materials borrowed from prior rules we already shipwrecked, and were this panel to stay true to its precedents, they would require our court to similarly tear the Pathways Rule asunder.Today’s inconsistent ruling isn’t a win for the rule of law and principled decision-making; it is unfortunately the opposite. I must respectfully dissent.
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